Hossain v Ray White Sunnybank Hills
[2022] QCATA 66
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- Unreported Judgment
- Hossain v Ray White Sunnybank Hills[2022] QCATA 66
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Hossain v Ray White Sunnybank Hills[2022] QCATA 66
Hossain v Ray White Sunnybank Hills[2022] QCATA 66
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hossain v Ray White Sunnybank Hills [2022] QCATA 66 |
PARTIES: | moazzem hossain (applicant/appellant) v Ray White Sunnybank Hills (respondent) |
APPLICATION NO/S: | APL226-21 |
ORIGINATING APPLICATION NO/S: | MCDT84/21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 24 May 2022 |
HEARING DATE: | 13 May 2022 |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Traves |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – where minor civil dispute heard by Member – where tenant sought to raise hardship through COVID-19 on appeal – where tenant made oral application to rely on fresh evidence as to hardship at the hearing of the appeal – where application opposed – where tenant claims member erred in not applying special term of lease which tenant claimed entitled him to one week free rent – where tenant purported to add to grounds of appeal by claiming during hearing of appeal that Member did not allow him to be heard – whether application for fresh evidence should be allowed – whether any reasonably arguable grounds of appeal Residential Tenancy and Rooming Accommodation Act 2009 (Qld) s 277, s 308, s 327, s 331. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404. Cordery v Century 21 – Investment Focus [2013] QCATA 218. Hiscox v PBG Realty [2019] QCATA 112 Lombato v Gardian Real Estate Pty Ltd [2021] QCATA 130 Pickering v McArthur [2005] QCA 294 |
APPEARANCES & | |
Applicant: | Self-represented |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]This is an appeal by a tenant, Moazzem Hoassain, from a decision of an Adjudicator in a residential tenancy matter. The Adjudicator ordered the residential tenancies authority to pay the sum of $836.90 held as rental bond as follows: the sum of $833.67 to the lessor and the sum of $3.23 to the tenant.
The decision at first instance
- [2]The tenancy agreement between the lessor (represented by Mr Zhu on behalf of Ray White Sunnybank Hills) and the tenant was a tenancy for a fixed term expiring on 27 March 2021. On 24 February 2021 the tenant gave the lessor’s agent a notice of intention to leave without grounds, with a handover date of 10 March 2021.[1]
- [3]The lease contained a special term which provided:
One week free will be available by the end of the last week of the lease date.[2]
- [4]It is the application of that term in circumstances where Mr Hoassain vacated early that is at the heart of this dispute. Mr Hoassain submitted at first instance, and on appeal, that he was entitled to one week free rent up to 10 March 2021, the day he vacated. Mr Zhu, on behalf of the lessor, submitted that the clause applied to the week immediately prior to the end lease date, that is, from 20 March to 27 March 2021.
- [5]The Adjudicator held that the end of lease date remained 27 March 2021 (despite the notice of intention to leave) and that the one week free rent provided for in the lease applied to the week immediately preceding that date, whether or not Mr Hoassain had elected to leave early.
- [6]On that basis, the Adjudicator held that Mr Hoassain was not entitled to one week free rent and that he owed the lessor $668.55 for rent up to 11 March 2021 and $165.12 for water charges, making a total of $833.67.
Grounds of appeal
- [7]Mr Hoassain wants to appeal that decision. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[3] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[4]
- [8]Mr Hoassain relies on two grounds of appeal in his application for leave to appeal filed on 19 July 2021. They are, to summarise:
- (i)The one week free rent period in the tenancy agreement was altered on 24 February 2021 when ‘[Mr Hossain] agreed to vacating without ground’ by submitting the Form 13 to Ray White. The parties agreed that the tenancy was to end on 10 March 2021.
- (ii)Financial hardship suffered by Mr Hoassain due to the financial impact of COVID-19 on his investment income which was not properly considered by the Adjudicator at first instance.
- (i)
- [9]After Mr Hossain had been heard in relation to those grounds of appeal, Mr Hoassain said that he was not given a fair amount of time in the hearing at first instance to raise his arguments, and that the respondent’s representative screamed and was otherwise allowed to dominate the hearing.
- [10]This was not a ground of appeal raised by Mr Hoassain and Mr Zhu had not had an opportunity prior to the appeal hearing to consider it. It is too late for Mr Hoassain to raise it for the first time at the appeal. That said, I have read a copy of the transcript of the hearing below and am satisfied that both parties were given a fair allocation of time and each had an opportunity to present their case.
Ground one: the one week free rent term of the lease
- [11]Mr Hoassain submits in relation to this ground that the parties agreed he could depart on 10 March 2021 and that the ‘one-week free rent in the agreement was altered on 24 February when [he] agreed to vacating without ground”. I presume that Mr Hoassain is arguing that the agreement was altered so that the ‘one week free rent’ now applied to the week prior to his new departure date of 10 March.
- [12]This is, in effect, the argument that Mr Hoassain presented below which was rejected by the Adjudicator. The issue is whether the Adjudicator made an error in doing so.
- [13]As I have outlined above, the tenancy agreement was a fixed term agreement starting on 28 September 2020 and ending on 27 March 2021. Under the terms of that agreement, the tenant was entitled to one week free rent ‘by the end of the last week of the lease date’.
- [14]The Adjudicator held that the end of lease date was 27 March 2021 and that this was not altered by the tenant giving the lessor a notice of intention to leave. Further, that the obligation to pay rent until the end lease date continued, despite the notice of intention to leave. I find no error in that approach.
- [15]In my view, the effect of the clause providing that “one free week will be available by the end of the last week of the lease date” was that the right to the free week does not accrue until the last week of the lease. That is, in effect, what was found by the Adjudicator.
- [16]
- [17]However, pursuant to s 331(2)(g) the handover date (in the case of a notice of intention to leave without ground) is the later of 14 days after the notice is given or the date the term of the agreement ends. (emphasis added) The effect of s 331(2)(g) is that, even with a notice of intention to leave, the handover date is the date the fixed term ends, and not an earlier date. Applying s 277(c) and s 331(2)(g) the agreement ends no earlier than the last day of the fixed term.[7]
- [18]The effect of the tenant giving a Form 13 Notice of Intention to Leave without grounds, was outlined by Judicial Member DJ McGill SC in Lombato v Gardian Real Estate Pty Ltd:[8]
[17] If one were to look only at Clause 36 of the standard terms of the General Tenancy Agreement in Form 18a, and the Act s 277, one might be tempted to believe that a tenancy for a term could be terminated by giving a notice to leave the premises, and handing over vacant possession of the premises to the lessor; but that is not the true position. The reason for this was explained by the Tribunal in Hiscox v PBG Realty [2019] QCATA 112. In short, a notice of intention to leave will not take effect prior to the expiration of the term, unless the tenant can establish one of the specific grounds in the Act s 302 – 307. Just giving a Notice of intention to leave and vacating will not bring to an end the obligation to pay rent. In the present case it appears the tenants did give a Notice of intention to leave on 20 April 2019, but there was no application filed until 14 June 2019, and no application raising the ground of excessive hardship until 26 September 2019. (emphasis added)[9]
- [19]The effect of s 277(c) of the RTRA is to bring the agreement to an end but only from the end of the lease date. It might be wondered why a person would bother to give such a notice. The reason is because, without the notice to leave, the fixed term tenancy would convert into a periodic tenancy.[10] In other words, the tenancy does not come to an end automatically at the end of the term, even if the tenant vacates and hands back the keys.[11]
- [20]It follows, that giving the notice of intention to leave without grounds did not bring the lease to a premature end. It ended the tenancy on the end lease date. This had the consequence that Mr Hoassain remained liable under the tenancy agreement, for the rent.
- [21]The lessors have claimed rent only until 11 March 2021 because new tenants were scheduled to come in on 12 March 2021.
- [22]Mr Hoassain also submitted that he had been misled by Mr Zhu, presumably because Mr Hoassain alleges that Mr Zhu led him to believe he could end the lease early but still be entitled to the week of free rent.
- [23]Mr Hoassain has not provided any evidence which supports that allegation. The issue was considered by the Adjudicator who observed:
Mr Hoassain’s misunderstanding about this was not fuelled by anything that the managing agents did, or what Mr Zhu said, as can be seen from email number 4, which Ms Sun has pointed out, 16 February 2021. It is clearly stated there that he would have to pay rent to the later date, that is one week before the lease end, and I accept what Mr Zhu said that when he spoke to Mr Hoassain about this in the office that he told him it would be a break lease.[12]
- [24]Mr Hoassain has not demonstrated any error in the Adjudicator’s reasoning. I find that the Adjudicator’s finding, in effect that Mr Hoassain was not misled by Mr Zhu, to be consistent with the evidence.
- [25]There is no merit in this ground of appeal.
Ground two: hardship due to COVID-19
- [26]Mr Hoassain raises the impact of COVID-19 as his second ground of appeal. He refers to having lost 30% of his super investment over the period from March to July 2020 and to his family’s rental property overseas, the income from which “has been useful too in bad time financially”. Mr Hoassain refers to s 6 of the COVID-19 Regulation and asks for it to be applied “to [his] hardship since March 2021”.
- [27]Mr Hoassain said that he mentioned his “application for hardship” in his application heard on 21 June 2021 but that he “did not get a chance to finish” because the hearing was closed in the middle of his case.
- [28]Mr Hoassain did not make a formal application seeking to terminate the tenancy for hardship. In his application for a residential tenancy dispute filed on 20 April 2021 Mr Hoassain said that he was not claiming excessive hardship because of the COVID-19 emergency.[13] The only reference to COVID-19 was in the last paragraph of an attachment to his application where he states:
In conclusion, may I add your Honor, I am a pensioner, already COVID-19 made me and my spouse relatively poor, due to one third of my super investment income lost over the last one year. I cannot afford to pay extra 12 days of rent due to double deep (sic) on the part of the real estate agent at the end of the tenancy.
- [29]Mr Hoassain did not refer, relevantly, to COVID-19 at all during the hearing, other than in the context of explaining how he came to be living in the rental property.
- [30]It was not until after the Adjudicator had delivered his reasons that Mr Hoassain asked to raise “another thing”. The Adjudicator said, in effect, that he could not because the matter was over. Mr Hoassain ignored that and proceeded to say that he had suffered hardship due to COVID-19 after he submitted his application.
- [31]The Adjudicator replied that he had considered s 84 of the Residential Tenancies and Rooming Accommodation Act, the Emergency Response Regulations of 2020 which required him to consider the financial and medical effects of the COVID-19 emergency in any order, but that, in this particular case he did not think that had had any effect in the matter.
Application for fresh evidence relating to hardship
- [32]Mr Hoassain attached to the application for leave to appeal certain documents he says support his claim that he was suffering financial hardship due to COVID-19. This bundle of material comprising a UniSuper pension statement; UniSuper benefit statement; ANZ letter dated 17 May 2021; Westpac letter dated 8 June 2021; Coles Mastercard letter dated 21 April 2021; Suncorp letter dated 20 April 2021; lease between Mr Hoassain as lessor and Mr Raja of a premises in Dhaka dated 1 July 2020 (attachments 4 to 10 and further unmarked, unpaginated attachments) was not before the Adjudicator at the time he made his decision. It is therefore new evidence sought to be adduced for the first time on appeal.
- [33]The Appeal Tribunal gave directions on 1 September 2021 requiring any party seeking leave to rely upon fresh evidence to make an application for leave to rely upon such and to provide a copy of the application to the other party explaining why the fresh evidence was not available to the tribunal below, why the fresh evidence is important and why the fresh evidence should be accepted in the appeal proceedings.[14]
- [34]No such application was made. Indeed, Mr Hoassain wrote to the Tribunal on 13 October 2021 advising that he would not be submitting any further material in relation to the appeal.
- [35]Nevertheless, I asked Mr Hoassain at the appeal hearing whether he sought to make an oral application at the appeal hearing to adduce fresh evidence. Mr Hoassain said that he wished to make the application on the basis he had not had an opportunity to fully develop the hardship argument before the Adjudicator.
- [36]Mr Zhu objected to the application on the basis that Mr Hossain had never raised hardship with them and had not relied upon it in his claim in the Tribunal. Further, Mr Zhu said he would be prejudiced by allowing the fresh evidence at this late stage of the proceedings.
- [37]The evidence was available prior to the hearing on 21 June 2021 (Suncorp letter dated 20 April 2021; ANZ letter dated 17 May 2021; Westpac letter dated 8 June 2021). In any event, Mr Hoassain has not demonstrated how the evidence is relevant to these proceedings or satisfied me that it is otherwise important.
- [38]Accordingly, the application for leave to rely on fresh evidence is refused.
- [39]Mr Hoassain has not demonstrated any error in relation to the Adjudicator’s reasoning with respect to s 6 of the Regulation. Mr Hoassain did not raise s 6 in his material nor at the hearing. The Adjudicator said that he had considered the COVID-19 Emergency Regulations 6 but had decided it had no effect on the matter.
- [40]I see no error in that finding on the material before the Adjudicator. I would add that Mr Hoassain has still failed, even on the fresh material he seeks to rely upon, to establish the necessary pre-conditions to s 6.
- [41]There is no merit in this ground of appeal.
Conclusion
- [42]I am not satisfied, for the reasons above, that the grounds of appeal are reasonably arguable or that a substantial injustice will be caused to Mr Houssain if his leave to appeal is refused.
- [43]Accordingly, leave to appeal is refused.
Footnotes
[1] Form 13 issued on 24 February 2021; Residential Tenancy and Rooming Accommodation Act 2009 (Qld) (RTRA Act), s 308.
[2] Lease dated 26 September 2020, Part 3 Special Terms, clause 7.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(a)(i).
[4] Pickering v McArthur [2005] QCA 294 at [3].
[5] RTRA Act, s 327 sets out the requirements for the notice.
[6] RTRA Act, s 331 sets out the requirements for the handover day.
[7] Cordery v Century 21 – Investment Focus [2013] QCATA 218.
[8] [2021] QCATA 130 at [17].
[9] See also Hiscox v PBG Realty [2019] QCATA 112 [16] – [18].
[10] RTRA Act, s 70; Lombato at [20].
[11] RTRA Act, s 327; s 70; Lombato at [20].
[12] Transcript 1-19.
[13] Application for residential tenancy dispute filed on 20 April 2021, p 3.
[14] Tribunal Directions dated 1 September 2021, direction 4.